DENYING ACCESS, P.2

Connaught therefore could not unreasonably interfere with Trepel's right to access to the apartment for the purpose of sale. The court decided that along with realtors or prospective purchasers, Trepel had the right to visit the apartment in connection with marketing his interest. At the same time, Connaught was entirely within its rights to impose reasonable restrictions on such access, in order to enforce its own interest in preventing a shareholder who had not been approved by the co-op from occupying the unit.

As a matter of law, Trepel was simply not entitled to keys, since to have provided him with keys would grant him precisely the unfettered unilateral access to the apartment that New York law did not provide. Such an order would effectively give Trepel the power to occupy the apartment. Second, and accepting Trepel's version of the facts, all that had been established was that on a limited number of occasions, employees of the building had been unavailable or uncooperative with his efforts to secure access. That was unfortunate, in the court's view, but it did not warrant a conclusion that Connaught was deliberately preventing him from selling the apartment.

At the same time, even accepting Connaught's version of the disputed facts, it was conceded that Connaught employees had on at least some occasions failed to provide Trepel with reasonable access. Trepel thus had established his entitlement to a declaration that, under the attachment and sale directed by the court, as well as under his agreement with Connaught, he had a right to access to the apartment, at reasonable times and on reasonable notice, for the purpose of showing the apartment to prospective purchasers. The court held that, if Connaught chose to provide such access by having an employee accompany Trepel or his agents on such visits, it could do so, but it must in that case take steps to assure that its employees were aware of Trepel's rights, and make employees available on reasonable notice to accompany them and provide access.

The court said it would be unfortunate if the court had to police this determination. However, on the principles discussed, it was clear to the court that, if access were unreasonably denied in a way that interfered with the rights delineated above, an application for further equitable relief might at some point be warranted.

Accordingly, Trepel's motion for an order directing Connaught to provide him with keys to the apartment was denied. However, his motion for further relief was granted to the extent of the court's decision.

This case reveals that a court will enforce a shareholder's agreement given to induce a co-op to permit the transfer of shares and a proprietary lease to that person which in some manner restricts the use or occupancy of the apartment. Here, the court permitted only such access as was needed to sell the apartment, but without providing a key that would have afforded unlimited access to the apartment by the shareholder.

Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan.

Adapted from Habitat December 2008. For the complete article and more, join our Archive >>